Law of unintended consequences – the ADA

The Americans With Disabilities Act (ADA), signed into law by Bush the elder in 1990 is a prime example of the “Law of Unintended Consequences.” Ostensibly enacted to help people with physical disabilities, it has become little more than a revenue stream for unscrupulous lawyers and has done little to help the disabled. In fact, according to this piece (by John Stossel), it has actually done more harm than good.

The ADA was popular with Republicans and Democrats. It passed both houses of Congress with overwhelming majorities, 377 to 28 in the House and 91 to 6 in the Senate.

What does it do? The ADA prohibits discrimination against people with disabilities, requiring businesses to provide the disabled “equal access” and to make “reasonable accommodation” for employees. Tax credits and deductions are available for special equipment (talking computers, for instance) and modifying buildings to comply with the accessibility mandate.

The ADA was supposed to help more disabled people find jobs. But did it?

Strangely, no. An MIT study found that employment of disabled men ages 21 to 58 declined after the ADA went into effect. Same for women ages 21 to 39.

How could employment among the disabled have declined?

Because the law turns “protected” people into potential lawsuits. Most ADA litigation occurs when an employee is fired, so the safest way to avoid those costs is not to hire the disabled in the first place.

Walter Olson, a senior fellow at the Cato Institute and author of the Overlawyered.com blog, says that the law was unnecessary. Many “hire the handicapped” programs existed before the ADA passed. Sadly, now most have been quietly discontinued, probably because of the threat of legal consequences if an employee doesn’t work out.

Under the ADA, Olson notes, fairness does not mean treating disabled people the same as non-disabled people. Rather it means accommodating them. In other words, the law requires that people be treated unequally.

The law not only covers employment issues – it also applies to all businesses with public access. This has created a whole new industry for lawyers and “professional litigants.” (more here and here) If you own a restaurant or other business with public access, you must provide handicap access to your facilities or risk a lawsuit.

The law has also unleashed a landslide of lawsuits by “professional litigants” who file a hundred suits at a time. Disabled people visit businesses to look for violations, but instead of simply asking that a violation be corrected, they partner with lawyers who (legally) extort settlement money from the businesses.

Some disabled people have benefited from changes effected by the ADA, but the costs are rarely accounted for. If a small business has to lay off an employee to afford the added expense of accommodating the disabled, is that a good thing — especially if, say, customers in wheelchairs are rare? Extra-wide bathroom stalls that reduce the overall number of toilets are only some of the unaccounted-for costs of the ADA. And since ADA modification requirements are triggered by renovation, the law could actually discourage businesses from making needed renovations as a way of avoiding the expense.

A few disabled people speak up against the law. Greg Perry, author of “Disabling America: The Unintended Consequences of the Government’s Protection of the Handicapped,” says that because the disabled now represent an added expense to businesses, many resent them.

Finally, the ADA has led to some truly bizarre results. Exxon gave ship captain Joseph Hazelwood a job after he completed alcohol rehab. Hazelwood then drank too much and let the Exxon Valdez run aground in Alaska. Exxon was sued for allowing it to happen. So Exxon prohibited employees who have had a drug or drinking problem from holding safety-sensitive jobs. The result? You guessed it — employees with a history of alcohol abuse sued under the ADA, demanding their “right” to those jobs. The federal government (Equal Employment Opportunity Commission) supported the employees. Courts are still trying to sort it out.